Citation Nr: 21076049 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-01 643 DATE: December 22, 2021 ORDER Entitlement to service connection for the residuals of traumatic brain injury (TBI) is denied. FINDING OF FACT The preponderance of evidence weighs against a diagnosis of TBI or residuals thereof. CONCLUSION OF LAW The criteria for entitlement to service connection for the residuals of TBI are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 31, 1998 to November 17, 2007, which is considered honorable for Department of Veterans Affairs (VA) purposes. His service from November 18, 2007 to January 15, 2009 is considered dishonorable for VA purposes. As the final period of active duty service was dishonorable, it is a bar to VA benefits for that period; however, the Board of Veterans' Appeals (Board) will still consider the Veteran's claim for service connection with regard to his honorable period of active service. This matter comes before the Board on appeal form a November 2014 rating decision by the VA Regional Office (RO) in Montgomery, Alabama. The claim for service connection for residuals of a TBI was previously before the Board in December 2019. At that time, the Board remanded the claim in order to afford the Veteran a VA examination. As the record reflects that the Veteran was afforded an adequate VA examination following the remand, the Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for the residuals of TBI Generally, service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection requires evidence of a current disability, an in-service incurrence, disease or injury and a causal relationship between the current disability and the in-service incurrence, disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that he sustained a TBI as a result of two incidents in service. The Veteran reports that he was hit with a blunt object during a bar fight and was hit in the face with a door. As noted, the claim for service connection for residuals of a TBI was remanded in December 2019 in order to afford the Veteran a VA examination. The Veteran reported to the August 2021 VA examiner that he hit his head on a doorknob in 2009 and he could not remember whether he lost consciousness, but he did not go to the hospital. No amnesia or skull fracture was reported as a result of the incident. The Veteran reported that the second incident occurred in 2010 while stationed overseas when he was hit by a blunt object during a bar fight. The Veteran reported that he thought he lost consciousness but could not remember and did not seek medical care or sustain any amnesia or skull fracture as a result of this incident. Initially, the Board notes that the alleged incidents reported to the August 2021 VA examiner occurred during the Veteran's dishonorable period of active duty, and thus cannot be used for service connection purposes. See 38 C.F.R. § 3.12. The Board acknowledges that the Veteran has previously reported that the head injuries he alleges to have sustained in service occurred during his period of honorable active service and will thus also consider the weight of the competent medical and lay evidence in evaluating the service connection claim. In this regard, the August 2021 VA examiner found that the Veteran did not meet the criteria for a TBI diagnosis based on history, examination and review of the medical record. The examiner noted no complaints of impairment of memory, attention, concentration, or executive functions. The Veteran's judgment, motor activity, visual spatial orientation and consciousness were all noted to be normal and social interaction was noted to be routinely appropriate. The examiner noted that the Veteran was always oriented to person, time, place and situation. The Veteran had no subjective symptoms and no neurobehavioral effects. The Veteran was also noted to be able to communicate by spoken and written language and to be able to comprehend spoken and written language. The examiner based his opinion on the lack of any clear evidence of a head injury in the medical records and the significant lapse of time between the alleged injuries and the onset of the Veteran's headaches symptoms and memory loss. The Board finds that the August 2021 VA examination is entitled to probative weight. The examiner's opinion was based on a review of the relevant medical records, examination of the Veteran and consideration of the relevant facts. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion.) The Board acknowledges that VA treatment records note the existence of a TBI diagnosis. Specifically, a June 2014 TBI evaluation in the VA treatment records found that the Veteran's symptoms were consistent with a TBI as a result of having a latch fall on his head while deployed in 2006 or 2007, with headaches starting 3 weeks after the incident. Notably, the Veteran is service connected for his migraine headaches as a separate disability as a result of the December 2019 Board decision and the Board finds no probative evidence of a separate and distinct TBI disability in the VA treatment records. Moreover, the Board affords more weight to the finding of the August 2021 VA examiner that the Veteran does not have residuals of a TBI. Having determined that the Veteran does not have residuals of a TBI, the Board need not further address whether the complained of injuries occurred during the Veteran's period of service that is considered honorable for VA purposes. Based on the foregoing, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran is entitled to service connection for residuals of a TBI. The Board acknowledges the Veteran's contention that he has a TBI and his competency to relate observable symptoms, but notes that there is no evidence in the record indicating that he has the necessary expertise to diagnose residuals of a TBI or relate it to an in-service accident. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As the preponderance of the competent medical and lay evidence weighs against a finding that the Veteran has residuals of a TBI, the claim for service connection is denied. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). As the preponderance of evidence is against the Veteran's claim, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Snyder, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.